New article explains why lawsuits help improve care to residents

A new article, ‘Torts Provide Best Relief for Nursing Home Residents,’ is now available free from Clifford Law Offices web site at http://www.cliffordlaw.com. The Chicago law office is posting legal articles on their website in an effort to educate the public about legal matters.

Torts Provide Best Relief for Nursing Home Residents

A man in his 70s with a psychotic disorder, known as someone who smokes in prohibited areas, sneaks out of his room in a Niles nursing home when two of the three nurses on duty are on a break.

He leaves the dementia unit and wanders into an unused wing of the hospital, where he lights a cigarette that causes most of the room to be engulfed in flames. He is burned over 25 percent of his body, and both of his legs have to be amputated.

Another nursing home in suburban Niles fails to adequately supervise a 71-year-old woman who falls down the stairs in her wheelchair.

In Chicago, a nursing-home care worker is charged with involuntary manslaughter earlier this year after she allegedly attacked a 62-year-old resident, dragging him out of bed and causing him to fall and break his hip. He dies of a heart attack a week later, and the Cook County Medical Examiner’s Office rules it a result of the stress of the assault.

Reports of nursing-home abuse appear to be on the rise for a number of reasons: the growing aging population, a greater cognizance of neglect and abuse of the elderly and the increasing specialized care for the aged. Projections of 2000 census data indicate that the elderly population will rise to 71 million Americans by 2030, more than twice the number counted in the 2000 census. By 2050, the elderly population is expected to reach nearly 87 million, comprising about 20 percent of the U.S. population.

Who is going to take care of all of the aged people, given the number of small families, divorced couples and working people? Much of the care will be left to the 18,000 nursing homes operating in this country.

Nursing homes did not really begin to develop until after World War II, when the federal government began licensing and regulating them. With the passage of Medicare and medicaid legislation in 1965 that authorized federal reimbursements for these homes, the number of beds soared, and nursing homes became big business, from private sole-proprietorship facilities to corporate chain operations.

Such facilities deal with residents’ needs ranging from rehabilitation to custodial care. Although a host of federal regulations are in place and administered under the U.S. Department of Health and Human Services, state governments are responsible for enforcing compliance with federal and state regulations. Generally, the state’s public health department conducts inspections.

When abuse and neglect occur, it is possible to bring a breach of contract action when residents and their families sign an agreement specifying a certain quality of care. But it is generally under state tort law that nursing home residents and their families appear to find the greatest satisfaction and relief.

In Illinois, the Nursing Home Care Act, 210 ILCS 45/1-101 (2005), deals with such facilities. When it was originally passed in 1979, it was hailed as the most comprehensive legislation in the nation dealing with long-term care. The act explains the conditions necessary to provide adequate long-term care and penalties for failing to meet them, with the most drastic remedy being license revocation and closing the facility.

Although such laws are necessary to protect the elderly, they do little for those who personally suffer harm. It is generally left to negligence standards to compensate those who suffer at the hands of nursing home workers. The courts, though, have made a distinction between professional negligence and ordinary negligence, both of which can occur in a nursing home facility.

For example in Myers v. Heritage Enterprises Inc., 354 Ill.App.3d 241, 820 N.E.2d 604 (4th Dist.2004), a 78-year-old resident of a downstate nursing home fractured both legs when she fell while being transported in a special lift. She died two weeks later, apparently of unrelated causes.

The executor of her estate filed a lawsuit alleging negligent transfer and supervision of the patient under the NHCA, as well as a common law negligence. The trial court instructed the jury, though, that only expert testimony could be used to determine if negligence occurred. “You must not attempt to determine this question from any personal knowledge you have,” was part of the court’s instruction under I.P.I. 105.01.

On appeal, however, the court reversed and remanded, holding that the plaintiff was prejudiced by such an instruction. The court found that operation of the lift did not require expert testimony necessitating a professional negligence instruction. Jurors should have been allowed to use their own experience to decide if the nurses’ aides negligently dropped the woman.

In Harris v. Manor Healthcare Corporation, 111 Ill.2d 350, 489 N.E.2d 1374 (1986), the Illinois Supreme Court held that the term “adequate care” was synonymous with “ordinary care” or “reasonable care,” thus denoting the use of an ordinary care standard of negligence in proceedings against nursing home attendants.

Illinois defines institutional abuse as, “Any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility,” Ill. Admin. Code, Title 77, 300, 330 (1983). Malnutrition, bedsores, improper restraints, scalding in bath water or thermal blanket burns, even food poisoning are some of the institutional abuse that has been witnessed by the residents and their loved ones.

Robert Browning, the 19th century poet, once wrote, “Grow old along with me!/The best is yet to be./The last of life, for which the first was made:/Our times are in His hand.”

Life in Illinois’ nursing homes may not live up to Browning’s ideal. It is left to the legal community to at least ensure that a decent quality of life for the elderly is sustained, particularly for those who often cannot take care of themselves.